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California Injury Claim for Baseball Spectator Allowed to Proceed

In most cases, people who participate in sports are barred from recovering damages because of a legal doctrine called the primary assumption of the risk. Under this doctrine, people are considered to have assumed the risk of participating in inherently dangerous sports. However, as the case of Summer J. v. United States Baseball Federation, Cal. Ct. App. Case No. B282414 and B285029, an exception might apply, depending on the role played by the defendant.

Factual and procedural background

On Aug. 17, 2014, Summer J., a 12-year-old girl, was a spectator at the national team trials for U.S. Baseball at Blair Field, which is located on the campus of California State University, Long Beach. She was sitting in the grandstand, which was not protected by netting. When Summer’s attention was distracted away from the game, a player struck a line drive foul ball, hitting her in the face. Summer suffered serious injuries, including damage to her optic nerve. She filed a lawsuit against U.S. Baseball, the City of Long Beach, and the university, alleging premises liability and negligence.

Summer alleged U.S. Baseball had sponsored the game and that there was inadequate netting in the danger zone. She stated that the presence of some netting in other areas of the stadium provided her with a false sense of security that she was in a safe area. She also alleged that the defendants knew that the netting was inadequate but failed to correct the problem.

U.S. Baseball filed a demurrer to Summer’s complaint, arguing that her lawsuit was barred by the doctrine of the assumption of the risk. It also argued that the risk was open and obvious, obviating it of the need to warn spectators of the danger of being hit by foul balls. Before the court ruled on U.S. Baseball’s first demurrer, Summer asked the court for permission to file a second amended complaint. She argued that she could offer more information about Blair Stadium that could demonstrate that being hit by foul balls at baseball games there was not an inherent risk. She stated that the stadium was configured in such a way that the spectators were seated closer to the playing field than the 70-foot distance that is recommended for college baseball stadiums. She also argued that the netting should have been extended from the dugout to the field-level seating along the first and third bases.

The court sustained the demurrer filed by U.S. Baseball and denied Summer’s motion to amend her complaint. The court ruled that the additional information would not fix the defects in her lawsuit and that her claim was barred by the doctrine of the primary assumption of the risk. It also ordered her to pay costs. Summer filed a motion to tax costs, but the judge denied it. She then filed an appeal of the court’s judgment of granting the demurrer and denying her motion to file an amended complaint. She also appealed the court’s denial of her motion to tax costs.

Issue: Would providing adequate netting in the zone of danger at the first and third base seating areas extended to the dugout substantially alter the game of baseball?

The primary assumption of the risk doctrine states that participants and spectators of sports events assume the risks that are inherent to the games. This doctrine absolves operators of liability when someone is injured by an inherent risk of the sport in most cases. However, it does not absolve operators of all of the duty of care to take steps to minimize risks in certain cases. Summer argued that being hit by line drive foul balls was not an inherent risk of baseball in her case because U.S. Baseball could have minimized the risk by installing more protective netting. She also argued that the could have introduced evidence of the stadium’s configuration if she had been granted leave to file a second amended complaint, which was denied by the court.

Rule: Under the primary assumption of the risk doctrine, operators that can implement safety measures to reduce the risks in a way that will not substantially alter the game must do so.

Spectators at sports events and sports participants are generally barred from recovering damages when they are injured because of the inherent risks of the sport. In baseball, spectators generally may not recover damages for their injuries when they are struck by foul balls because the balls are considered to be an inherent risk of baseball. However, when operators can take steps to minimize the risks to the spectators in a way that would not fundamentally alter the sport, they may be liable to people who are injured if they failed to implement the protective measures.


The appeals court started by noting that in cases in which a demurrer is sustained without giving the plaintiff leave to amend, the court looks at whether the proposed amendment could cure the problems in the first complaint. The court then explained the primary assumption of the risk doctrine and traced its history in California courts. The court said that determining whether something is an inherent risk of a sport can be determined by judges based on common knowledge rather than on expert opinions. Courts can also look at case law, published opinions, and other evidence in making their determinations.

The court looked at the primary assumption of the risk doctrine as it was applied in Kahn v. Eastside Union High School Dist., 31 Cal. 4th 990 (2003).[2] In that case, the California Supreme Court found that the duties that are owed by a defendant depend on his or her role in addition to the nature of the sport. In other words, the primary assumption of the risk doctrine involves an analysis of both the inherent risks and whether a particular defendant’s role placed him or her in a position in which a duty was owed to take steps to minimize the risks to the plaintiff.

The court considered whether installing additional safety netting would fundamentally alter the game of baseball. In its analysis, it found that 30 major league baseball teams intend to install additional safety netting, which indicates that taking this step would not fundamentally change the game of baseball.

The court reviewed Summer’s proposed second amended complaint and found that it did state causes of action for premises liability and negligence and that she should have been allowed to file her second amended complaint.

This case contrasts with an earlier case that we analyzed. In Swigart v. Bruno, Cal.App.4, Case No. D071072, the court found that a woman who was injured while riding a horse during an endurance competition was barred from recovering damages because of the assumption of the risk doctrine.[3] However, in that case, the plaintiff was a participant in the sport. The plaintiff argued that Bruno, another participant, was grossly negligent because he continued to ride to close to other riders despite repeated warnings. When the court looked at the video of the event, it saw that horses continuously bumped into the horses in front of them, meaning that it was an inherent risk of the sport. In this case, Summer was a spectator instead of a participant. The U.S. Baseball could have taken steps to reduce the risks of watching the game by installing additional safety netting. Because of its role, the court found that Summer could file a second amended complaint and pursue her lawsuit against U.S. Baseball.


The appeals court reversed the judgment of the trial court that denied Summer’s motion to tax costs. It also vacated the trial court’s order sustaining U.S. Baseball’s demurrer and denying Summer’s motion to file a second amended complaint. It ordered the trial court to enter an order granting U.S. Baseball’s demurrer but granting Summer’s motion to file a second amended complaint, and it also ordered U.S. Baseball to pay Summer’s costs on appeal.

Talk to the Steven M. Sweat, Personal Injury Lawyers

If you have been injured as a sports spectator, whether you might have the right to recover compensation for your injuries will require a fact-specific analysis. The experienced attorneys at the law firm of Steven M. Sweat, Personal Injury Lawyers can evaluate your potential claim and explain whether it has merits. Contact us today to schedule a free consultation by calling 310.592.0445.





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